Microsoft forbidden to keep Novell patents

The US Department of Justice has told Microsoft that it is not allowed to keep all those Novell patents it picked up following the death of the company.

There were fears that Microsoft could do a SCO and use the patents in its war against Linux and effectively force people to use Windows.

Novell,has changed its deal to sell patents to CPTN Holdings, which is a Vole backed consortium which includes Oracle, Apple and EMC. The move means that Microsoft will not get hit by another anti-trust lawsuit.

Microsoft will sell the Novell patents back to Attachmate, which announced in November it was merging with Novell. Vole will get a licence to use those patents and patents acquired by the other three owners of CPTN.

The Open Source Initiative (OSI) has breathed a sigh of relief over the announcement. Writing from his bog, Simon Phipps, an OSI director, said the agreement shows “open source is a crucial market force, ensuring strong competition, and as such deserves regulatory recognition and protection.”

However it might not be the end of Microsoft’s woes. The agreement to change the deal is not stopping the DOJ looking into the sale.

In a statement the DOJ said that the changes will allow the first phase of the US$450 million deal to go ahead.

If it had not acted, the DOJ argues, the sale would have jeopardised the ability of open source software to innovate and compete in middleware, virtualisation, and server, desktop and mobile OS markets.

Sharis Pozen, deputy assistant attorney general in the DOJ’s Antitrust Division, said that the party’s actions to address the immediate competitive concerns resulting from the transfer of Novell’s patents will promote innovation and competition.

It seems that the agreement means that EMC will not acquire 33 Novell patents and patent applications that have been identified as related to virtualisation software.

All of the Novell patents will be subject to the GNU General Public Licence, Version 2 and the Open Invention Network (OIN) Licence.

CPTN cannot limit which of the patents are available under the OIN license, and CPTN and its owners will not be allowed to encourage Novell or Attachmate to modify which patents are available under the OIN licence.

The deal seems to show that Microsoft was more concerned about getting the licences to use Novell patents rather than owning them.

It might be that the idea that it owns code that is under the bonnet of Linux is a myth and the problem for Microsoft is that it is the other way around. This would explain why it rushed to do deals with Novell long before the company was bought out.